GUARDIANSHIP and ADOPTION
Guardianship and Adoption
A guardianship is when a third party or second/third degree relative comes in to seek custody of a child. Typically, it is a grandparent seeking the guardianship of his/her grandchild. To obtain a guardianship, the moving party, the guardian, has to establish that the biological parents are unable to, or unwilling to meet the needs of the child. In a guardianship you must establish that there has been significant dereliction in the biological parents' duties as parents. A dereliction level of CPS (Child Protection Services) intervention, proof of chronic alcoholism, drug addiction, and obviously incarceration, removes the parents from their ability to parent. Sometimes the immaturity or the age of a parent makes it problematic for them to be candidates for parenting.
A guardian must establish that neither parent is capable of meeting the needs of the child. There are unfit parents with all the desire in the world to meet the needs of their children but, because of their particular issues, they cannot.
A case worker is appointed to each guardianship case. The case worker conducts an independent investigation to determine the competency of the proposed guardian, as well as the deficiencies of each parent. If either of the parents is capable of meeting the needs of the child, the guardianship will not be granted unless the parents agree to guardianship. If either parent who is fit objects to guardianship, then the guardianship will not be granted.
When a guardianship is ordered, that order places the guardian as the primary care parent, and the guardian has all the power to determine what visitation rights and custody rights the biological parents may have. The guardian is responsible for all of the child's health, education, and welfare needs. The guardian has complete discretion to determine schools, doctors, medical care, religious convictions, and residence.
If, at some future time, a parent believes that the deficiencies that resulted in the guardianship order have been resolved, then one or both parents can petition to terminate the guardianship. In this case, the process reverses. A case worker is assigned to the guardian and determines if the parents are capable and willing to meet the needs of the child. At this point, they have priority over the guardian, typically resulting in the guardianship being terminated.
If there is a long term guardianship, either through private guardianship or a CPS intervention guardianship, in which the biological parents have not resolved their issues over a long term, then a long term guardianship may mature into an adoption.
An adoption is different from a guardianship in that guardianships are temporary in nature and can be undone by a finding that the parents have resolved the problems that resulted in a guardianship. The parents can then be deemed capable and willing, and assume parenting as the primary parents. Guardianships are not permanent. Adoption, however, is permanent, once a court grants adoption. No matter how appropriate a biological parent becomes in the future, the parents are no longer candidates for re-unification with their child. The adoption is permanent and complete and only modifiable by subsequent adoption by the parents or third party.